THE CONCEPT OF TECHNICALITIES IN THE DELIVERY OF SUBSTANTIVE

JUSTICE IN UGANDA.

GUKIINA PATRICK MUSOKE.

A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW AND INSTITUTE OF

CRIMINAL JUSTICE OF NKUMBA UNIVERSITY IN PARTIAL FULFILLMENT

OF THE REQUIREMENTS FOR THE AWARD OF A BACHELOR OF LAWS

DEGREE OF NKUMBA UNIVERSITY.

2021

1
 DECLARATION

I Gukiina Patrick Musoke, declare that this research work titled “The Concept of

technicalities in the delivery of substantive Justice in Uganda. “is my original work and has

never been presented for any degree in any institution of higher learning here or elsewhere.

Signature: …………………………………………..

Gukiina Patrick Musoke

Date: ……………………………………………

i
 APPROVAL

This proposal has been approved by Mr. Cornelius Henry Mukiibi for the award of the

Degree of Bachelors of Law of Nkumba University, Entebbe Uganda.

Signature……………………………...………. DATE…………………….………………

Mr. CORNELIUS HENRY MUKIIBI

ii
 DEDICATION

This work is dedicated to my parents as well as the people of Uganda, Africa and all those
who have fallen victim of technicalities in courts of law.

Let this be a prelude for the creation of a dream justice system that delivers solutions to the
people’s problems but not avoiding them by ruling on technical aspects of law unjustifiably
which leaves no issue resolved.

iii
 ACKNOWLEDGEMENT

Writing my research paper has not only widened my horizons on substantive justice, but has
also given me an insight on the problems, realities encountered in the delivery of Justice in
our court system.

Bearing this in mind, it would be impossible for me to continue without thanking those who
assisted me with my research.

I would like to thank my supervisor Counsel Cornelius Mukiibi for his dedication, guidance
and tireless effort that has enabled me produce this wonderful novel piece of work.

I would also like to thank His Worship Gukiina Peter Jr, Counsel Gukiina Prossy, Paul and
my young sister Patricia who have provided the encouragement that has enabled me to
accomplish this unique task.

iv
 LIST OF CASES.

1. Kasirye Byaruhanga &Co Advocates Vs Uganda Development Bank (Civil

Application No.2/97).
2. Utex Industries Ltd. Vs Attorney General, Civil Application No.52/95 (Unreported)
3. Mulindwa V Kisubuka Civil Appeal 2014/12 {2018} UGSC 38.
4. Attorney General Vs Major General David Tinyefuza - C.A 1/97
5. The Uganda Journalist Safety Committee & Kanabi Vs Attorney General-
Constitutional Petition No 6/97
6. M/s Environmental Action Network Ltd. Vs B.AT.U. (Miscellaneous Application No.
70/02
7. Assanand & Sons vs EA Records (1959) EA 360 and Standard Goods Corporation
Ltd Vs Harakchand Nathu &Co. (1950)
8. Paulo K. Ssemogerere & Z. Olum vs Attorney General, (Constitutional Petition No.3
of 2001)
9. Greenwatch Vs A. G (M.A.No.140/02.)
10. The Uganda Journalist Safety Committee & Kanabi Vs Attorney General-
Constitutional Petition No 6/97.
11. Apollo Kantinti V Sitenda Sebalu, EC and the Returning Officer EPA No.31 &33 of
2016.
12. Tito v Waddell (No 2) [1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972.
13. Kironde V s Apollo Kaddu Mukasa Kironde&Another - D.C. No6/01.
14. Annette NakalemaKironde V s Apollo Kaddu Mukasa Kironde&Another - D.C.
No6/01
15. Dapianlong V Dariye {2008} 8 NWLR part 1036) 322
16. Packer-V-Packer [1953] 2 AER 127,
17. Pepco Construction Company Limited v Carter & Sons Limited.
18. Philip Anania Masasi Vs Returning Officer Njombe North Constituency and others
Misc. Civil cause NO.7 of 1995 (High Court Songea

ET-AL

v
 LIST OF STATUTES

1. The 1995 Constitution of the Republic of Uganda, as amended.

2. Evidence Act Cap.6

3. Limitation Act Cap.80

4. Civil Procedure Act Cap 71.

5. Civil Procedure Rules SI 71-1.

6. The Penal Code Act Cap 120.

7. The Local Council Courts Act, 2006

8. Advocates Act. Cap. 267

9. Local Governments Act Cap. 243.

10. Magistrates Courts Act Cap 16.

11. The Evidence Act Cap.6

12. The Interpretation Act Cap 3.

13. Land Act Cap. 277

ET- AL

vi
 LIST OF ABBREVIATIONS.

1. CAP- Chapter
2. EACJ- East African Court of Justice.
3. HC- High Court of Uganda.
4. SC-Supreme Court of Uganda.
5. J- Judge
6. JA- Justice of Appeal
7. Op.cit- Opera citato
8. V- Versus
9. ETC- et cetera.
10. OIC- Order in Council
11. LC- Local council
12. LCC- Local council courts
13. HC-High Court.
14. UDHR- Universal Declaration of Human Rights.

ET-AL

vii
 TABLE OF CONTENTS
DECLARATION........................................................................................................................i

APPROVAL..............................................................................................................................ii

DEDICATION..........................................................................................................................iii

ACKNOWLEDGEMENT........................................................................................................iv

LIST OF CASES........................................................................................................................v

LIST OF STATUTES...............................................................................................................vi

LIST OF ABBREVIATIONS..................................................................................................vii

TABLE OF CONTENTS........................................................................................................viii

ABSTRACT..............................................................................................................................xi

CHAPTER ONE.......................................................................................................................1

GENERAL INTRODUCTION...............................................................................................1

1.0 Introduction:.........................................................................................................................1

1.1 Understanding Technicalities:..............................................................................................1

1.2 Problem statement..............................................................................................................13

1.3 Research objective.............................................................................................................14

1.4 General Objectives.............................................................................................................14

1.5 Specific Objectives.............................................................................................................14

1.6 Significance of the Study...................................................................................................15

1.7 Research Questions............................................................................................................15

1.8 Hypothesis..........................................................................................................................16

1.9 Ethical consideration..........................................................................................................16

1.10 Methodology....................................................................................................................16

1.11 Study Population..............................................................................................................16

1.12 Sample Size......................................................................................................................17

1.13 Data Collection Methods and Instruments.......................................................................17

viii
CHAPTER TWO:..................................................................................................................18

LITERATURE REVIEW......................................................................................................18

2.0 Introduction........................................................................................................................18

CHAPTER THREE...............................................................................................................20

THEORATICAL AND CONCEPTUAL FRAMEWORK................................................20

3.0 Introduction........................................................................................................................20

3.1 The use and abuse of Civil Procedure................................................................................20

3.2 The influence and viability of legal transplants on Justice................................................21

3.3 Substantive Justice as perceived fairness...........................................................................23

3.4 Legal technicalities and Justice..........................................................................................23

3.4 Causes of legal technicalities.............................................................................................24

3.5 Researchers Analysis.........................................................................................................24

3.6 The principle of legal certainty..........................................................................................24

3.7 Injustice created by legal transplants.................................................................................25

3.5 The balance between substantive and Procedural / Technical justice................................26

CHAPTER FOUR..................................................................................................................29

UGANDA’S TRADITIONAL JUSTICE SYSTEM AND TECHNICALITIES..............29

4.1 The Local Council Courts..................................................................................................29

4.2 The role of Uganda’s Local Council system in the Justice system..................................30

4.3 Lc System in Land Conflicts and Resolution.....................................................................32

4.3 The judiciary of Uganda and its approach to technicalities...............................................34

4.3.1 The Mandate of our Judiciary.........................................................................................34

4.3.2 Mistake of counsel..........................................................................................................34

4.3.3 Mistake in the name of the Parties..................................................................................35

4.3.4 Option of refiling.............................................................................................................35

4.4 The arguments for the application of technicalities...........................................................36

4.4.1 Lawyers And Conflict Of Interest In Uganda.................................................................36

ix
4.5 Limitation of Action...........................................................................................................39

4.6 Controversial application of technicalities in Ugandan courts..........................................40

4.7 Substitution of Parties........................................................................................................41

4.8 Failure to pay filing fees....................................................................................................42

4.9 Failure to take out summons for directions........................................................................42

4.10 The technicality of a cause of action................................................................................42

4.11 The technicality of Abuse of process...............................................................................43

4.12 Technicalities as a menace in Uganda’s land perspective...............................................43

4.13 Equity Law as a mitigation to technicalities....................................................................46

CHAPTER FIVE...................................................................................................................48

CONCLUSION AND RECOMMENDATIONS.................................................................48

5.0 Introduction.......................................................................................................................48

Conclusion................................................................................................................................48

Recommendations....................................................................................................................49

BIBLIOGRAPHY....................................................................................................................51

x
 ABSTRACT
The quest for justice has never been a smooth and easy one as it is costly, requires a lot of
precision, diligence, adequate time and preparation. Suffice to it as it may, it also requires
both the client and lawyer participation if it is to be successful given the various legal snags
involved ranging from filing out of time to insufficient evidence as well as the possibility of
defective affidavits which can hinder substantive Justice.

Needless to add is that the quest for justice is most of the time shaped by the lawyers’
abilities to create time and make a good case for their clients. For instance, when people have
bad cases, mainly in land law practice in Uganda, they opt for the advent and use of
technicalities i.e. they would rather opt for courts to look at small glitches and mistakes of the
counsel and decide a matter rather than look into the merits of the case. In many instances,
this has created injustice in the society today as Justice is sacrificed on the altar.

The above is therefore a perfect reflection of Cicero’s 50 BC assertion and observation of

“more law, less justice”.an aphorism that pointed to the quandary that the law seems to have
created, reducing the possibility of justice with its proliferation. This research therefore
explores the institutional and procedural architecture that enables or limits access to justice
on the altar.

This research further examines the essence of our legal systems in comparison with the
realities on ground for instance the viability of legal options including that of re-filing a case
that has been dismissed on technicality.

The researcher also works on the assumption that no issue can be settled by avoiding the
issues i.e., when courts decide matters by technicality, there is no viable resolution to the
matter at hand.

This study will therefore examine the extent to which the jurisprudence emanating from our
courts have strengthened the constitutional provisions on access to justice and it will also
discuss the prominence that the courts are giving or ought to give to substantive justice and
not strict adherence to rules of procedure for it is a constitutional aspiration that disputes be
resolved and settled in a timely manner and that justice be dispensed to all as per Article 126
(2) e of the 1995 Constitution as amended.
xi
 CHAPTER ONE
GENERAL INTRODUCTION
1.0 Introduction:
1.1 Understanding Technicalities:
There is no standard definition of the term technicality but rather different legal scholars have
defined it differently considering the fact that the term “technicality” itself is wide in scope
and may cover various aspects including jurisdiction, filing out of time, failure to pay filing
fees, mistake of counsel among others as will be discussed here on.

It is therefore worthy of conclusion that the term technicality has no exact meaning and
doesn't have a legal definition 1

However, Bucholz a reknown legal scholar and writer offers a more practical and descriptive
definition of technicalities when he states that “A legal technicality is some tiny legal tripping
hazard, a petty justification for throwing out a case, or ignoring justice altogether.

He further explains technicality by referring to a scenario where after witnessing the murder
of your family, your dog, and your dog’s family, you have to sit quietly by while some liberal
activist judge sets the criminal free for some trivial procedural issue…. Let down by
everything you used to trust, you are forced to take justice into your hands2. In this, he
undoubtedly condemns the advent and use of technicalities in the justice system and depicts it
as a provocation for the masses to resort to mob justice.

It is therefore imperative to note that the most common understanding and definitions of
technicalities as propounded by scholars and legal writers are set out in the spirit of
sacrificing justice.

Nevertheless, there is another school of thought which believes that these technicalities are
extremely important in law and that they are a process by which justice is attained. A case in
point is Lord Penzance, sitting at the House of Lords in Henry JB Kendall & Others v Peter
Hamilton who set out technicality in the following words:

1
Technicality, Dictionary for US, http://dict.us/technicality on 29 January 2016
2
Bucholz, C. “The 6 Most Insane Legal Technicalities” 2013
1
"Procedure is but the machinery of the law after all, the channel and means whereby law is
administered and justice reached.3 The above connotation rather meant that it is through
procedure that justice is obtained. Needless to add is that this school of thought has often
clinged on the fact that justice has to be attained with order and that to do away with
technicalities is to do away with an orderly justice system.

Suffice to it as it may, Procedural rules refer to rules that prescribe the steps for having a right
or duty to be judicially enforced, as opposed to substantive law that defines specific rights or
duties.4

However, other legal scholars have argued that a masterly and proper application of the rules
of procedure creates no problem. However, a deviation from the same, sometimes very
slightly, creates the mother of all inconveniences, and sometimes, the loss of rights. Where
there is that deviation, the case is decided on that legal hitch, without going into examining
the merits.

Nevertheless, although the law provides some remedies to this impasse like the option of
refiling. According to my infield research, many of the cases that have been dismissed on
technicality in Uganda have not been re-filled due to the heavy costs already imposed on the
losing party which often leaves them at the mercy of the party that attained a technicality-
based victory.

Furthermore, Sir William Holdsworth, a British legal historian and Vinelian Professor of
English law, set forth the aspect of technicality vis avis substantive justice as follows:

"One of the most difficult and one of the most permanent problems which a legal system
must face is a combination of a due regard for the claims of substantial justice with a system
of procedure rigid enough to be workable. It is easy to favour one quality at the expense of
the other, with the result that either all system is lost, or there is so elaborate and technical a
system that the decision of cases turns almost entirely upon the working of its rules and only
occasionally and incidentally upon the merits of the cases themselves.5

3
He111)1JB Kendall & Others v Peter Hamilton (1878) 4 AC 504.
4
Geody, K.B; What is the difference between Substantive and Procedural Law
5
Holdsworth W, History of English Law, 3rd ed, Vol II, 251
2
In his averment, he further elaborates on the fact that there is hardly a balance between
substantive justice and technical justice in the legal system. However, this problem didn’t
only stop at his time but has rather persisted throughout time and is still existent in Uganda
today as will be discussed here on.

In light of the foregoing, it’s also imperative to note that the justification posited by legal
scholars is that the ‘law is not a broading omnipresence in the sky, but the prophecy of what
the Court will do’. In the premises, the application of technicalities is justified on the basis
that it promotes predictability and consistency in the justice system.

In the literal sense, this means that technicalities are vital because they spear a prediction of
what courts of law are envisaged to do6. The need for a definite legal test is underwritten by
the principle of Legal Certainty which stipulates that law must be precise, predictable and
calculable by those subject to it.7

It is also important to note that the internationally recognized concept of legal certainty
envisages accessibility and foreseeability of the law and assurance of the unitary
interpretation of the law.

Needless to add is that the fanner posits that in order for an existing law to have legal effect,
its recipients must know effects of the law bringing it to public attention and after its entry
into force8

Nevertheless, there is no doubt that for many years, technicalities have been given
prominence by courts all over the world.9 This has made it very hard for the applicants /
plaintiffs in particular and the public in general to access justice and thus resulted into
criticism of the various judicial systems in different countries for the perceived failure to
uphold the rule of law10 with adverse effects on judicial propriety.

It is also vital to note that legal practitioners are trained in the rem of the technicality of law
and applications of both substantive and adjectival laws in practice of their profession to

6
Olusegun Femi Akeredolu on the implication of legal technicality on the rule of law article
7
Raitio, J, The Principle Of Legal Certainty In EC Law, Springer, 2003, 16
8
Predescu I & Safta M, The Principle of Legal Certainty, 2009, 7.
9
A case in point discussed in Samuel Wakaba v Bamburi Portland Cement [1997] KLR.
10
The Judges and Magistrates Vetting Board, Determination concerning the judges of the Court of Appeal, 2012
eKLR

3
ensure justice in the society. This is further evidenced by the fact that in legal practice today,
preliminary objections are now part and parcel of our court system today.

However, due to present day judicial activism, Courts of law will not ordinarily allow the
letter of the law to defeat the spirit and substance of the law as it defeats the notion of fair
hearing and affects judicial propriety. 11

A case in point is the case of Banco Arabe Espanol v. Bank of Uganda 12 , where it was held
that the administration of justice should normally require that the substance of all disputes
should be investigated and decided on their merits and that errors or lapses should not
necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to
rules renders the appeal process difficult and inoperative, it would seem that the main
purpose of litigation, namely the hearing and determination of disputes, should be fostered
rather than hindered.

The above approach is a clear manifestation of judicial activism in the Judiciary of Uganda
envisaged at ensuring that the major purpose of the court system which is realization of
justice is realized in light of the increasing prominence of technicalities that have hindered
substantive justice.

Furthermore, in Okello v. Mudukanya [1993] IK.A.L.R. 110 the learned justice stated that
“It is a cardinal principle of fairness that both parties should be given an opportunity to be
heard before court pronounces itself on the matters in controversy between the parties and
that this connotation forms a fertile ground for setting aside an exparte judgment if there is no
proper service. It was further stated that the power to deny an applicant extension of time
within which to appeal should be used sparingly with circumspection and in rarest of rare
cases with an aim to prevent abuse of process of Court, but not to stifle legitimate prosecution
of claims.

It should also be noted that the learned justice in the above case actually considered the fact
that application of technicalities could stifle legitimate prosecution of claims which is against
the principle of fairness.

11
Sir Jack Jacob, 'The Fabric of the English Civil Justice'
12
1999] 2 EA 22
4
Similarly in Phillip Keipto Chemwolo and another v. Augustine Kubende13, the Court of
Appeal held that: “Blunders will continue to be made from time to time and it does not follow
that because a mistake has been made a party should suffer the penalty of not having his case
determined on its merits.” In some cases, courts have taken upon themselves an approach of
holding the counsel liable for his mistakes in litigation and spared the client.

However, it is vital to note that the notion of fair hearing cannot be achieved without
compliance with the provisions of the adjectival laws in civil and criminal procedures.

It is therefore my humble submission that the most important question that we should ask
ourselves is to what extent should technicalities be used to decide cases and what effect has
the advent and application of technicalities had on the justice system in Uganda?

According to my in-field research, many Ugandans fear that they may not get justice from the
Ugandan courts more specifically in land related cases and when I tried to inquire about the
genesis of their feelings pertaining judicial impropriety, many deciphered that it has become
a habit for courts to decide matters on small legal issues and ignoring the facts of the case.

I also discovered that there is a strong belief that these technicalities “small mistakes made
mainly by lawyers” as perceived by the lay man have facilitated judicial corruption and as
thus resulted into limited confidence in the judiciary among the populace and in Uganda, this
was partly exhibited when many cases were filed in the Land Inquiry Commission under
Justice Bamugemereire with the petitioners claiming that they didn’t trust the court system
and others claiming that they failed to get justice in the courts because their matters were
decided without looking into the merits of the case.

There is thus no doubt that the right to access justice has been threatened, violated or
infringed upon by the courts in the past by its failure to abhor legal technicalities14

13
[1986] KLR 495
14
The same was noted in Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission& 6 others
[2013] eKLR.

5
However, it should be noted that the Civil Procedure Act Cap.71 and the rules that were
made under it contain specific provisions that are supposed to promote the concept of
administering substantive justice.

I shall try to highlight some of them.

Amendment of Pleadings- This is provided for under order 6 rule 18 although it is under
the discretionary powers of court to allow a party to amend his/her/ its pleadings in order to
cure any defects so that the court is in a position to determine the real issues in controversy.

Misjoinder and non-joinder of parties. This is provided for under order 1 rule 9 of the
CPA which provides that no suit shall be defeated for the misjoinder or non-joinder of
parties and the court is enjoined to deal with the matter in dispute and determine the issues in
controversy between the parties before it.

It should also be noted that there are also the inherent powers of court provided under section
101 of the CPA that many legal practitioners invoke quite often to persuade court in order to
have substantive justice done.

However, it is imperative to note that the above statutory provisions notwithstanding, the
rules of procedure in all the courts have specific provisions that are technical in nature. For
instance, Order 6 rule 5 provides that the plaintiff or defendant must raise by his/her/its
pleadings all matters, which show that the action is unmaintainable or it is barred by law.

Furthermore, rejection of a plaint under order 7 rule 11 is a technical tool against the realms
of substantive justice. Not forgetting Striking out pleadings under order 6 rule 29 which
also hampers the administration of substantive justice.

Enlargement of time. This is provided under section 99 and rule 47of the CPA. In the case
of Ojara v Okwera15 it was held that an order for enlargement of time to file the appeal
should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay
in seeking the indulgence of the Court, has not presented a reasonable explanation of his
failure to file the appeal within the time prescribed by Act, or where the extension will be

15
Miscellaneous Civil Application-2017/23) [2018] UGHCCD 42 (06 September 2018),
6
prejudicial to the respondent or the Court is otherwise satisfied that the intended appeal is not
an arguable one.

The learned Justice further stated that “It would be wrong to shut an applicant out of court
and deny him or her the right of appeal unless it can fairly be said that his or her action was in
the circumstances inexcusable and his or her opponent was prejudiced. However, in the
instant case, court was implored to balance considerations of access to justice on the one hand
and the desire to have finality to litigation on the other.

It should also be noted that the power given is discretionary. It is given to enable the court to
enlarge time in favour of a party who fails to meet the deadline set by the Act and the rules.
This is intended to avoid a situation where a litigant can easily be driven from the judgement
seat before his or her complaint is investigated.

The concept of justice.

The concept of justice is reflected in the image of Justice which consists of a blind folded
lady standing with a scale of justice on one hand and a sword of retribution on the other.

With a clear connotation, this lady is heartless and she can always use this sword without
16
consulting anybody for as long as she deems it necessary. In a lay man’s understanding,
Justice simply means fairness.17 i.e., it’s an ideal of civilization that the law should protect
victims and punish18 those who do wrong which serves a multitude of reasons including that
of retribution and deterrence.

However, it is imperative to note that Justice is not only about what courts and legal systems
do, it also involves fundamental philosophical questions that need to be addressed by each
and everyone.19

Suffice to it as it may, Justice can also be defined as a constant and perpetual desire to render
everyone, his or her due20 , in line with the ubi jus ibi remedium principle. This, in turn,

16
https://civicsonlineresourcecommunity.org/meaning-of-lady-justice
17
GARNER, B A (2004)
18
ELIZABETH, A M (2001)
19
Souper (n 3)
20
YK Sabharwal, ‘My Dream of an Ideal Justice Dispensation System’ (2007)
7
means that if justice is to be realized, our courts must in every way find legal techniques to
provide relief to the one who has been deprived of what was due to him or her.

It is therefore not surprising that Oliver Wendell Holmes’ in a bid for advocating for judicial
activism stated that ‘The life of the law has not been logic; it has been experience” .
He further suggested that the law embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a
book of mathematics 21.

Similarly, Sabharwal averred that for there to be effective and efficient justice dispensation,
there must exist, three (3) inalienable elements which include Access to courts, effective
decision-making by judges, and the proper implementation of those decisions. These
elements all presuppose that when we talk about the ideals of justice, we assume that they are
being discussed in a way which makes the court of law as the last resort of the people.22
By linking courts of law as a last resort for the people, he clearly advocated for resolution of
conflicts on their merits for there is no issue that is settled by avoiding the issues.

However, during my in filed research, I discovered that many Ugandans believe that justice
can only be attained when the issues in a trial are dealt with accordingly and parties are given
chance to adduce their evidence. This approach and perception are surely against the court-
based approach of deciding matters on preliminary objections some of which are based on
locus standi, lack of a cause of action among others.

However, it is imperative to note that the 1995 Constitution of Uganda as amended also
enlarges the element of locus standi through various provisions such as:

Article 5023 which gives the right to anybody who claims that a fundamental other right or
freedom guaranteed under the Constitution has been infringed to go to court for redress. The
reason for this article is that it the duty of every citizen to defend the Constitution regardless
of whether he is personally aggrieved or not to go to court. The rationale here is that even if
one's personal rights are not threatened, you go to court to seek redress for public good. The
concept of locus standi in my view demystified. This is what is popularly known as class
action litigation.

21
See OW Holmes, The Common Law (reprint, American Bar Association 1888.
22
Sabharwal (n 18
23
1995 Constitution of Uganda as amended variously.
8
It is also important to note that Article 27324 saved all laws that were in existence at the
promulgation of the 1995 Constitution. The article charged the Courts to construe these laws,
“with such modifications, adaptations, qualifications and exceptions as may be necessary to
bring it into conformity with this Constitution.”

Courts and Article 126 (2) e

I shall start with some of the cases that have caused disquiet among the court users and the
public in general as regards the application of Article 126 (2) e of the 1995 Constitution as
amended.

In Utex Industries Ltd. Vs Attorney General (Civil Application No.52/95). The application
before the Supreme Court was one for enlargement of time for failure to take the right step at
the right time under certain provisions of the Supreme Court rules of procedure. The
applicant sought to rely on Article 126(2)(e)25 in support of its case. In rejecting the
application, the Court said: "Regarding Article 126(2)(e) and the Mabosi case we are not
persuaded that the Constituent Assembly Delegates intended to wipe out the rules of
procedure of our courts by enacting Article 126(2)(e). Paragraph (e) contains a causation
against undue regard to technicalities. Court further stated that the article appears to be a
reflection of the saying that rules of procedure are handmaids to justice meaning that they
should be applied with due regard to the circumstances of each case. Court therefore
concluded by stating that “We cannot see how in this case article 126(2)(e) or Mabosi case
can assist the respondent who sat on its rights since 18/8/1999 without seeking leave to
appeal out of time.

To further buttress the above point, the case of Kasirye Byaruhanga &Co Advocates Vs
Uganda Development Bank26 involved a similar application for enlargement of time. The
applicant also sought to rely on Article 126(2) (e) in support of his application. And in
rejecting his application, the Court relied on the Utex case and stated: " a litigant who relies
on the provisions of Article 126(2) (e) must satisfy the court that in the circumstances of the
particular case before the court it was not desirable to pay undue regard to a relevant
technicality. However, in the above case court stated that Article 126(2)(e) is not a magic

24
Supra
25
Supra
26
Civil Application No.2/97
9
wand in the hands of defaulting litigants." And that in resolving such matters, the
circumstances of each case have to be taken into consideration.

Needless to add is the case of Major General David Tinyefuza Vs Attorney General 27where
Court handled the technical objections that were raised by the Attorney General relating to
affidavits sworn in support of the petition as those that are defective. The Constitutional
Court rejected the preliminary objections and Manyindo DCJ (as he then was) said: "The
case before us relates to the fundamental rights and freedoms of the individual like the
petitioner which are enshrined in and protected by the Constitution. The learned justice
further stated that in my opinion it would be highly improper to deny him a hearing on
technical or procedural grounds. I would even go further and say that even where the
respondent objects to the petition as in this case, the matter should proceed to trial on merit
unless it does not disclose a cause of action. This Court should readily apply the provisions
of Article 126(2)(e) of the Constitution in a case like this one and Administer justice without
undue regard to technicalities. This case therefore shows the undisputed vitality of the
technicality of a cause of action because without it, the foundation of the case is destroyed.

Furthermore, in the case of Goloba Godfrey v. Harriet Kizito28 and Bank Arabe Espanol v.
Bank of Uganda SCCA No. 8 of 1998). Courts adopted the idea that it was inequitable, an
injustice and prejudicial to the litigant for court to visit negligence of counsel on the client.
These are all bold steps of judicial activism that courts have embarked on in a bid to promote
substantive justice and mitigate the repulsive effects of technicalities.

It is also imperative to note that a similar decision was taken by Justice L.E.M. Mukasa-
Kikonyogo, DCJ (as she then was) in Hikima Kyamanywa case explained that for effective
administration of justice, the courts are enjoined to investigate all disputes and decide them
on merit. Errors or lapses of counsel should not be visited on litigants who have no control
over advocates.

In the same spirit in Engineering Trade link’s Ltd v. DFCU Bank Ltd 29, it was held that
denying a party the opportunity to be heard shall be the last resort of court. To the contrary,

27

28
SCCA No. 7 of 2010
29
Misc. App. No. 337 of 2014 (arising out of C.S No. 593 of 2012) 
10
despite the above judgement, it is vital to note that many suits have been dismissed on
technical grounds for instance.

However, in the case of Uganda Journalist Safety Committee & Kanabi Vs Attorney
General30- Court found that the petition did not disclose a cause of action and the parties
were driven from the judgement seat without the court considering their rights to be heard.

However, it is imperative to note that in the instant case, court also did not address the
provisions of Article 126(2) (e) and determine whether the technicalities that were being
raised by the Attorney General could hinder the administration of substantive justice as the
same court in Tinyefuza case.

However, in light of the foregoing, it is vital to note that Ugandan courts have embraced
judicial activism and have thus reformed the justice system reducing the impact of
technicalities as was seen in the case of Annette Nakalema Kironde V s Apollo Kaddu
31
Mukasa Kironde & Another . A divorce case in which a woman petitioned court under
section 5(2) of the Divorce Act where she could only petition for divorce on the ground that
only her husband had committed adultery but also that he had been cruel. In dealing with the
problem at hand Kagaba J. after referring to various articles of the Constitution found
section 23 of the same Act void for being discriminatory because it provides for payment of
costs by the co-respondent to the husband if it is the husband petitioning and not vice versa.
Henceforth Substantive justice was done in this case and technicalities were ignored.

The approach to technicalities in other common law jurisdictions

It suffices to mention that various common law jurisdictions are adopting a technicality free
justice system and as analyzed hereon:

Lord Bowen in the case of Cropper vs. Smith32, stated that “It is a well-established principle
that the object of the Courts is to decide the rights of the parties, and not to punish them for
the mistakes they make (or those that are made on their behalf), in the conduct of their cases
by deciding otherwise than in accordance with their rights……I know of no kind of error or
mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct, if it

30
Constitutional Petition No 6/97.
31
D.C. No6/01
32
1884) 26 Ch. D 700,710
11
can be done without injustice to the other party. Courts do not exist for the sake of discipline,
but for deciding matters in controversy.”

Furthermore, in the Tanzanian case of Philip Anania Masasi Vs Returning Officer Njombe
North Constituency and others33(unreported) but persuasive in nature, the retired Chief
Justice of Tanzania noted that the wages of procedural sin should never be the death of rights.

Similarly, the supreme court of Nigeria in Dickson Ogunseinde Virya Farms Ltd v Societe
Generale Bank Ltd & Ors stated that a litigant cannot be heard to complain about fair
hearing when the applications he placed before the Court were incompetent. ‘That is the
exception to the fair hearing principle as it only applies where the party has the right to be
heard and when that right does not exist on account of a process that is incompetent or dead-
on arrival, then the party has no leg on which to stand to cry out about fair hearing. The
above approach therefore considered the relevancy of applying substantive justice but only to
the extent of the extent to which the technicality goes to the root of the matter in issue.

Lastly, in Psychiatric Hospitals Mgt. Board v. Edosa,34 Wali, JSC (as he then was), held that

“The important thing in dealing with a trial of any case be it civil or criminal, is to ensure
that the procedure of fair hearing is strictly complied with. If that is satisfied, it does not
necessarily matter whether the correct section of the law making such a provision is correctly
cited. The courts are now more concerned with doing substantial justice than clinging to
procedural technicalities and therefore concern themselves with the substance

It is therefore my humble submission that the juxtaposition of the above clearly posits to the
fact that various common law jurisdictions are embracing judicial activism and are
developing an approach that is based at further entrenching substantive justice at the expense
of technicalities and in the same spirit I will pray that the Ugandan justice system adopts the
same in the spirit of protecting justice at the altar.

33
Misc. Civil cause NO.7 of 1995 (High Court Songea)
34
7 Psychiatric Hospitals Management Board v Edosa (2001) 5 NWLR (Pt 707) 612 (SC)
12
1.2 Problem statement.
Despite the prevalence of Article 126 (e) of the 1995 Constitution of Uganda which prohibits
Ugandan courts from being tied up by legal technicalities in delivering justice, Courts have
failed to realize this in practice as they continue to dismiss cases on legal technicalities which
aspect has destroyed the notion of substantive justice as matters are disposed of technically.
i.e., the substance of the case is no longer at issue; hence the Court embarks on irrelevant
matters which do no assist the litigant anyhow as has been partly discussed above.

It is also trite to note that Undue regard to procedural technicalities can lead to the
adjournment of proceedings, expunging of pleadings off the court record, striking out
applications and dismissal of matters altogether (collectively 'the halting of proceedings').
The element of delay introduced by the halting of proceedings results in temporal
inefficiency that defeats the ends which civil justice is geared towards.35

The overarching problem to be addressed in this research is the extent which undue regard to
procedural technicalities extinguishes the overriding objectives of the Civil Procedure Rules.
Despite the embedding of the undue regard to procedural technicalities clause in the
Constitution, it is unclear what this guiding principle fully entails

This study therefore reviews the various court decisions decided on technicalities and thus
makes a critical analysis on the impact of dismissal of cases on legal technicalities as well as
substantive justice and judicial propriety basing on the notion of Justice must not only be
done but must be seen to be done.

This study therefore presents a timely opportunity for our justice system to move towards a
better and more effective role by addressing the shortcomings experienced so far.

Nevertheless, some legal scholars opine that the solution to this problem is still in the hands
of the judiciary and its lawyers who seem to embrace this practice at the expense of justice.

According to the data collected from both field and library, the researcher found out that the
problem of dismissal of cases on legal technicalities does exist not only in Uganda but in
Africa at large and that courts in various jurisdictions are slowly moving away from the old
approach through judicial activism and are forwarding a new approach of resolving issues
based on merit.

35
WH taft, delays and defects in enforcement law article and https://www.jstor.org/stable/25106146
13
1.3 Research objective
This study aims to examining the jurisprudence emanating mainly from the high court of
Uganda and analyzing whether it gives life to the constitutional provisions on access to
justice as per Article 126 (2) e. The objectives are further based on the fact that judicial
officers subscribe to different schools of thought, and that their interpretation and application
of the constitutional and statutory provisions is influenced by these schools.

The objectives of this research are:

i. To demonstrate the enhanced access to justice and an expeditious disposal of court

cases due to the purposive interpretation of Article 126 (2) e of the Constitution.36
ii. To make evident the ramifications that would arise from the otherwise failure to
interpret the constitution and all statutory provisions in a manner that promotes the
expeditious access to justice.

1.4 General Objectives.

The general objective of the study is to examine the impacts of dismissal of cases on legal
technicalities Vis avis the concept of substantive justice and to analyze the possible solutions
thereto.

1.5 Specific Objectives.

- This study adopts a human rights perspective in considering the problem of using
technicalities in courts of law and more specifically in Ugandan courts.
- To examine the main causes of legal technicalities in the Ugandan Justice system.
- To explore the reasons as to why the Courts resort to technicality as a way of
resolving matters before it.
- To expose the impact of legal technicalities in the administration of justice in Uganda.
- To make an analysis on the future of substantive justice in modern judicial systems.

1.6 Significance of the Study.

This study adopts a human rights perspective in considering the problem of using
technicalities in courts of law for instance the unjust application of technicalities in land /
36
1995 Constitution as amended variously.

14
property matters. Suffice to it as it may, the researcher believes that issues to do with land
are those that deal with life and livelihood and thus should not be decided on technicalities.

Furthermore, the researcher calls for a new approach that balances technicalities and
substantive justice just as Earl Warren stated “it is the spirit and not form of the law that
keeps justice alive”.

In adopting Warren’s thought as mine, this paper will strive to construct a thought-provoking
juxtaposition of the two bifurcations; the spirit and the form substantial and technical justice
in trying to decipher whether substantial justice, as opposed to technical justice, is true justice
or whether the reverse is the case.

This study suffices the following significance: -

 The study helps the government in laws and policy reforms in order to ensure that
justice is not denied on technical basis.
 The study helps the public at large to understand and access their rights in litigations
and help them to build confidence to our civil justice system.
 The study shows the possible solutions to be adopted by judges, magistrates, judicial
stakeholders and advocates to ensure that justice is not denied on technicality basis.
 The study also focusses on the realities of the remedies available when cases are
dismissed on technicality.
1.7 Research Questions.
The following questions will be posed and addressed in the course of this research:

i. How does the 1995 Constitution of Uganda provide for the right to access justice
and how do the courts interpret and apply of the same in various jurisdictions with
similar provisions?

ii. Which principles should courts follow in adjudicating cases so as to promote

substantive justice?

iii. Are the constitutional safeguards against adherence to technicalities sufficient to

guarantee access to justice and a fair judicial process?

15
1.8 Hypothesis.
The researcher works under the assumption that the mere inclusion of access to justice and
the abhorring of legal technicalities by courts as fundamental rights in the constitution is not a
guarantee of their accomplishment.

1.9 Ethical consideration.

In the conduct of my research, I will adhere to the standard principles of a good academic
researcher whereby I vow to incorporate the values of beneficence, which is the principle that
effective and significant research is done so as to better serve and promote the welfare of my
research constituents and will in so doing ensure that “no harm” is caused to community and
my respondents.

1.10 Methodology
This is predominantly qualitative research that utilizes mainly desktop methods to collect
both primary and secondary information about the study. Primary sources of information are
legal instruments including the 1995 Constitution of Uganda as amended , the various
statutory provisions that address access to justice through our judicial system, Reports of
Commissions. The decisions of the High Court of Uganda and other superior Ugandan and
other courts from various parts of Africa among others.

Secondary sources of information were also used, the main sources being books, journal
articles and electronic databases that address the subject of technicalities.

The study also adopted a quantitative research method which includes the use of
questionnaire, interviews, survey technique and structured observation though on limited
fronts due to the limited time allocated for the research.

1.11 Study Population.

The study population was comprised of Judicial officers, lawyers, as well as people from the
local communities in Wakiso District.

16
1.12 Sample Size.
A sample of 30 people was selected to participate in the exercise as this enabled the
researcher to collect an honest opinion on the aspect of the use of technicalities in the
delivery of Justice.

1.13 Data Collection Methods and Instruments.

Interviews.

The face-to-face verbal conversations were conducted by the researcher in gathering data
about the study and they enabled the researcher to conduct the research in the shortest time
possible.

Documentary Analysis.

The documentary analysis is extremely vital as it helps the researcher to correlate findings
with established written facts that he has already found.

Geographical scope

The researcher shall concentrate on cases that have been decided by the High Court and the
Supreme Court of Uganda and compare them with some of those that have been decided in
other jurisdictions so as to inform policy and reform.

17
 CHAPTER TWO:

LITERATURE REVIEW

2.0 Introduction.
The pouring over and perusing of pertinent literature to examine the extent, if any, to which
any of the aspects of this study has been previously undertaken has indicated a lacuna in
research as it has become more evident that apart from the few academic articles, conference
presentations on the element of substantive and technical justice in Uganda, there is hardly
any publication in Uganda on the above subject.

However, it is imperative to note that the subject on access to justice has been popular among
published theories, but few have scrutinized the need to abhor legal technicalities in the
administration of justice and in Uganda particularly, this has been limited to judicial
conferences as well as a few lawyers who have tried to analyze the issue.

In this section the researcher reviewed literature relating to the topic and observed the
missing gaps hence literature review was used to fill gaps in examining the influence of
technicalities in the delivery of substantive justice.

Genn a legal writer asks "Why procedural rules are so important and answers that the rules
guarantee procedural fairness, and procedural fairness is important both in its own right and
through its link with substantive justice37

Zuckerman has also argued that measuring the success of procedures in doing justice is a
complex judgment relating to rectitude of decision, time and cost. He states that there is no
perfect rectitude of decision, justice cannot be dispensed instantly without some delay, and
justice cannot be absolutely free of cost constraints. Each system has had to balance the
competing demands and strike a compromise.38

Furthermore, Nguyo P, ‘Arbitration in Kenya: Facilitating Access to justice by identifying

and reducing challenges affecting Arbitration’. States that disputes are inevitable in any
society. This calls for the establishment of disputes mechanisms that resolve disputes
expeditiously and at affordable rates. The citizens should not be left to despair in the pursuit
of justice but instead the legal institutions should create an enabling environment that

Genn H, Judging Civil Justice, Cambridge University Press, 2008 , 13

37

Zuckerman A, Civil Justice in Crisis: Comparative Perspectives of Civil Procedure, Oxfo rd

38

University Press, 1999, 11

18
enhances the delivery of justice at any forum. It now a well settled principle of law that
procedure, is the handmaid of justice and not the mistress thereof39

Clark E, ‘The Handmaid of Justice’ Washington University Law Quarterly (1938), notes
that legal technicalities and strict adherence to the rules of procedure have been given
prominence by some judges and law and that Strict adherence to procedures inhibit the
court’s ability in dispensing justice.

Lawrence B. Solum has also extensively discussed the importance of procedural justice. He
acknowledges the practice of sacrificing procedural justice on the altar of substantive fairness
by the courts40

Thomas Main, argues that substantive law is inherently procedural. He suggests that the
construction of substantive law entails assumptions about the procedures that will apply.

Needless to add is Lord Denning in ‘Freedom under the law’ Hamlyn Lectures First Series
(1994), 4. wherein he stated that substantive law is ultimately enforced. Those procedures are
embedded in substantive law and, if not applied, will lead to over- or under-enforcement of
the substantive mandate41

Lord Denning42further states that that ‘where there is any conflict between the freedom of the
individual and any other rights or interest then no matter how great or powerful those others
may be, the freedom of the humblest citizen shall prevail’.

Sir Jack Jacob while lauding the supremacy of procedure states that the essential function of
procedure is to infuse life into all other areas of the law, to bring into actual being and to give
reality and effect to all the legal rights and duties of every person and body in society43

39
Re Coles [1907] 1 K.B. 1, 4 Justice Collins M, recognized that the courts are not strictly bound by the rules of
procedure, which are generally meant to assist the court in delivering justice. They are not compelled to do that
which will amount to injustice
40
Lawrence B, ‘Procedural Justice’ Southern California Law Review, (2004), 139-144.
41
Thomas OM, ‘The Procedural Foundation of Substantive Law’ Washington University Law Review
(2010),801.
42
Freedom under the law’ Hamlyn Lectures First Series (1994), 4.
43
Jacob J, The Fabric of English Civil Justice, Hamlyn Lecture Series 38(1987)63 .
19
 CHAPTER THREE

THEORATICAL AND CONCEPTUAL FRAMEWORK.

3.0 Introduction.
This chapter focuses on the concept, theories and practical aspect of justice, its historical
development and the status quo in regards to procedural and substantive justice. The chapter
also tries to discuss various concepts relating to justice including Justice and Law, Legal
procedures vis avis justice, Technicalities and Justice as well as Access to justice and the
concept of Technicalities in light of Uganda’s legal framework.
3.1 The use and abuse of Civil Procedure.
Lord Coke once observed that “The court is aptly resembled to a clock which hath within it
many wheels and many motions; all as well the lesser as the greater must move; but after
their proper manner, place and -motion; if the motion of the lesser be hindered, it will hinder
the motion of the greater. He further averred that there is nothing more important to the
movement of the machinery of justice than the procedural rules by which litigation is
conducted. The rods and pinions of court action are dependent upon them. In turn, the very
rights of clients are in large measure dependent upon the lawyer's thorough knowledge of
their existence and application.44

Nevertheless, he noted that it is an absurdity that the loss of a lawsuit may sometimes be
attributed in a substantial degree to the failure of the lawyer to know, understand, and comply
with rules of procedure and this is true basing on the fact that a lawyer is presumed to be an
expert in the field of law and a comprehensive understanding of legal procedure is as
essential to him as the compass is to the sea captain. Lord Coke further averred that a mariner
could not leave the shore without a practical working knowledge of the rules of navigation.

Watson clay further questions the advent of such a problem considering the fact that when the
lawyer is confronted with a problem involving some legal principle, he invariably goes to the
Digest, the case book, or other authorities to find the answer. Why does he not go to the rule
book to find the clear-cut and simple answers to his procedural problems?

Nevertheless, he answers the same basing on the fact that some lawyers do not comprehend
that they are constantly confronted with procedural problems. They sometimes seem to
assume that once in court, the settled processes of law and a sympathetic judge will take care
of their cases for them.
44
Watson Clay’s article on technicalities in Kentucky law journal.
20
Similarly, proponents of legal technicalities suggest that a lawyer, is supposed to be, and
must be a trained technician basing on the fact that courts function on rules and that rules are
technical in nature. He must have a sound working knowledge of the tools of his trade. Some
of his best tools are the Rules of Civil Procedure.

3.2 The influence and viability of legal transplants on Justice.

The words justice and judge have similar meanings because they have a common ancestry.
They are derived from the same Latin term, jus, which is defined in dictionaries as “right”
and “law.” However, those definitions of jus are so broad that they obscure the details of
what the term meant when it formed the words that eventually became justice and judge.45
The English noun justice came from the Old French justice or jostise, meaning “uprightness,
equity, vindication of right, administration of law,”43 and “amenable to justice.46”

The concept of justice is believed to be as old as man himself and disputes and this can be
evidenced by the fact that some of the earliest thinking about justice is found in Aristotle’s
works. Aristotle in 1130-32 BC made a distinctive argument that the definition of the term
justice is still a matter of controversy among scholars.47

However, the Black’s Law Dictionary 8th Edition defines Justice as a fair and proper
administration of law. It can also be defined as a moral ideal that the law seeks to uphold in
the protection of rights and punishment of wrongs48.
On the other hand, Substantive justice means justice fairly administered according to the rules
of substantive, regardless of any procedural error not affecting the litigant’s substantive right;
a fair trial on merit 49

The solemn commitment to do justice “according to law” is asserted in its strictest form in
the maxim Fiat justicia, Ruat caelum which means, “Let justice be done, though the heavens
fall50. There is no doubt that the above maxim was invented to cure the disconcerting rules of
procedure that were largely evasive in terms of realisation of justice.

45
Jason Boatright on the History of Justice.
46
A Dictionary Of The Norman Or Old French Language 130 (Robert Kelham
47
FITZGERALD P.J( 2006), Salmond On Jurisprudence, 12th Ed, Universal Law Publishing Company, Delhi
India
At P.60.
48
ELIZABETH A M (2001)
49
supra
50
Fauz Twaib, Legal Empowerment of the Poor: Access To Justice and Rule of Law at pg.5.
21
It is imperative to note that Uganda inherited the common law adversarial system with its
attendant English practice and procedure which has always been at the centre of public
criticism for contributing to delays in the dispensation of justice together with its attendant
procedural technicalities.

In the same spirit, Lord Denning noted that trying to transpose English law to Africa was not
an easy matter and thus observed in 1955 that:

"Just as with the English oak, so with the English common law: one could not transplant it to
the African continent and expect it to retain the tough character which it had in England. It
had many principles of manifest justice and good sense which could be applied with
advantage to peoples of every race and colour all the world over, but it had also many
refinements, subtleties and technicalities which were not suited to other folk. These off-
shoots must be cut away. In those far-off lands the people must have a law which they
understood and which they would respect.

Now the question we should ask ourselves is whether it was actually right to transfer the
English legal regime on technicalities in Uganda without considering and weighing its effects
on court users, balancing the interests of justice and the law and as thus clearly defining the
interests of achieving substantive justice.

Nevertheless, one cannot fully appreciate the concept of justice without fully putting into
consideration the Raul’s theory of justice which was propounded in the year 1971 and it
entails that there should be the maximization of liberty, equality for all, and fair equal
opportunity51. Suffice to it as it may, Rawls’s theory of justice was developed from the social
contract theory to which he generates principles of justice for assigning basic rights and
duties and determining the division of social benefits in a society.52 All in all he birthed an
idea that justice has a direct link with right, morality, equality and entitlement.

3.3 Substantive Justice as perceived fairness.

In 1978, Thibaut and Walker53 asked a very important question in as far as judicial propriety
based on technicalities and substantive justice when he queried “Do people’s evaluations of
51
Freeman M.D.A, Lloyd’s Introduction to Jurisprudence, 8th Ed, Thomas Reuters (Legal) Ltd, London, 2008 at
p.583-
52
Professor Rawls J (1971), A Theory of Justice, Havard, USA, at p. 1-2.
53
Thibaut and Walker and the informal quality of interpersonal treatment and voice studied by Tyler (Skitka,
2003; Tyler
22
the justness and fairness of a decision reached and outcome rendered depend on the formal
process used? For example, do individuals perceive a process where the individual parties
engage in adversarial turn-taking as being fairer than one where the decision-maker engages
in an inquisitorial question and answer session?

In further construing the concept, he asserted that when a person receives some legal
outcome, whether it is favorable or adverse, that outcome is a product of both substantive and
procedural law. Substantive law defines the criterion for reaching a particular outcome in a
given domain of law. He further cited an example of criminal, torts, property, For example, if
the substantive criminal law defines speeding as driving over the posted speed limit then a
person will receive a speeding ticket (the adverse outcome) when the speed of their vehicle is
greater than the posted speed limit.

In contrast, he asserted that procedural law dictates the mechanisms involved in the
application of the entire body of substantive law. He further cited the example of speeding
and averred that procedural criminal law dictates that if you choose to challenge your ticket
by pleading not guilty, then you will engage in an adversarial process wherein you can
challenge the evidence provided by the issuing officer supporting the claim that you violated
the speeding law. This would be true regardless of the specific criminal violation (e.g.
speeding, burglary, or murder), because procedural criminal law applies to the whole domain
of substantive criminal law.

3.4 Legal technicalities and Justice.

In light of the discussion in chapter 1, it is trite and clear that legal technicalities can be seen
from the interpretation and application of statutes, rules, limitation of actions such as lapse
and slips in applications, complex procedural rules, and contradictions among justices in the
high court of Uganda and this definitely affects access to justice since whenever a matter is
dismissed on technicality, the substance of the case is no longer at issue hence the Court
embarks on irrelevant matters which do not assist the litigant anyhow.

There is also a general contention among the lawyers today that the Courts have become too
much of a slave of their own rules to the extent that they can hardly rectify injustices”.
However, Article 126 2 (e) enjoins the Court to dispense justice without being tied up with
undue regard to procedural technicalities.

23
3.4 Causes of legal technicalities.
In my interview with some lawyers and judicial officers who opted to remain anonymous,
they highlighted out some of the possible causes of technicalities in our judicial system as:

1. The conservative nature of their colleagues in the legal profession.

2. The interpretation of statutes and legal procedures which involves interpretation of

statutes which is often based on conflicting views.

3. Another view was that these legal technicalities are a result of the way laws are drafted
and the perspectives of the judge.

4. Furthermore, it was stated that technicalities are also caused by errors in procedures,
uncertainty or absurdity in law, loopholes in laws and failure of the court to comply
with Article 126 2 (e) of the constitution of Uganda.

5. There was also a view expressed by some lawyers that technicalities should be
maintained in order to promote legal certainty.

6. Needless to add is the fact that technicalities enable courts to dispose of matters in a
faster way which aids in clearing of court backlog.

3.5 Researchers Analysis

In light of the foregoing arguments for the application of technicalities, more especially the
argument of clearing case backlog, it is trite and reasonable that courts embrace judicial
activism and ensure resolution of cases on their merits. This is in light of the fact that no one
should suffer an injustice simply because of clearing case backlog. Moreover, the situation
can be linked to a doctor who decides to kill some patients so as to reduce on his backlog. I
find that so ironic.

3.6 The principle of legal certainty.

The principle of legal certainty is another justification for the advent and use of legal
technicalities. In some jurisdictions, it is known as the maximum predictability of an
administration's behavior. The principle of legal certainty postulates that citizens must be
protected against a threat that comes just from the law, against an insecurity created by law or
which the law risks to create.54 It is therefore undisputed that the need for a definite legal test
is underwritten by the principle of Legal Certainty which is an internationally recognized
principle of law.

54
Predescu I & Safta M, The Principle of Legal Certainty, Basis For The Rule of Law Landmark CaseLaw, 7
24
The principle further stipulates that law must be precise, predictable and calculable by those
subject to it.55 It also requires that there should be no doubt about the law applicable at a
given time in a given area and, consequently, as to the lawful or unlawful nature of certain
acts or conduct.56

A more elaborate definition states that principle of legal certainty enables those concerned to
know precisely the extent of the obligations that are imposed on them; individuals must be
able to ascertain unequivocally what their rights and obligations are and take steps
accordingly.57 In light of the foregoing, it is also imperative to note that these technicalities
are a product of legal transplants.

3.7 Injustice created by legal transplants

There is absolutely no doubt that the extent to which these foreign laws and procedures adapt
to the idiosyncratic needs of the broader population varies from country to country and it
largely depends on the process of transplantation.

One of the natural consequences of the recognition of this fact is that a certain “judicial
equilibrium” that may be perfectly suited to a particular society in a particular time, may not
fit another society or a different time 58

A similar preposition was posted by Lord Denning in the Nyali bridge case where he stated
that “ Just as with an English oak, so with the English common law. You cannot transplant it
to the African continent and expect it to retain the tough character which it has in England. It
would flourish indeed, but it needs careful tending...in these far-off lands the people must
have a law which they understand and which they will respect. The common law cannot fulfil
this role except with considerable qualifications.”

He further asserted that “the task of making qualifications to English law to suit the
circumstances of overseas territories called for “wisdom on the part of their judges” and
described the provision as a “wise provision” and that it was not incapable of application”

It should be noted that the poor and other marginalized segments of society in developing
countries face significant limitations to access formal judicial institutions.59

Cultural and language barriers, overly-complex procedures and cumbersome legal

requirements, financial, linguistic and geographical limitations, mistrust for institutions
55
Raitio, J, The Principle Of Legal Certainty In EC Law, Springer, 2003, 16
56
~The Queen v The Minister for Agriculture, Fisheries and Food, ex parte Fedesa and Others, ECtHR
Judgement of 13 November 1990, para. 8
57
https://www.jstor.org/stable/1228527 Js Wright
58
Cf, Graziadei, Comparative Law as the Study of Transplants and Receptions, at 472
59
Samuel P. Huntington, The Clash of Civilizations and the Remaking of the World Order at 225
25
derived from a colonial past, and radically different views on the nature and role of justice in
society, among other factors, hamper the ability of low-income citizens to effectively resolve
their disputes in official courts.

A case in point is the fact that African countries face similar problems and their legal systems
adapt differently to their challenges. Henceforth, in the state of Uganda, very many people
cannot afford legal representation and where they can do, many do not keep proper records,
evidence which renders it almost impossible for them to get effective remedies in our courts
of law hence there is a need to ensure that courts show leniency in handling cases and that
they exercise a lot of judicial activism in order to further promote substantive justice.

3.5 The balance between substantive and Procedural / Technical justice.

To balance the of scales between technical justice and substantive justice, an interplay of the
principles of natural justice, ethics and good conscience has to be given consideration.

The above was clearly enunciated by Lord Denning60 when he stated that

“My root belief is that the proper role of the judge is to do justice between the parties before
him. If there is any rule of law which impairs the doing of justice, then it is the province of
the judge to do all he legitimately can to avoid the rule, even to change it, so as to do justice
in the instant case before him.". in this premise, he called for judicial activism on the side of
the bench as a prelude for realization of substantive justice in light of the threat posed by
technicalities.

The same approach has been adopted in various jurisdictions for instance Justice Dahiru
Musdapher61 summarised the progressive thinking of the courts by appreciating their unique
role in his paper on “How to Restore Public Confidence in the Judiciary”62, wherein he,
placing emphasis on Lord Diplock’s observation that; “…it be a grave lacuna in our system
of public law if a pressure group like the federation, or even a single public spirited tax payer,
were prevented by outdated technical rules of locus standi from bringing the matter to the
attention of the court (if only) to vindicate the rule of law and get unlawful conduct stopped”.

He further noted that there is need to clear up the dark corners of legal technicalities that
most times give refuge to those who wantonly abuse constitutional powers, make a mockery
of the rule of law; and get away with it. This would go a long way in reinforcing the public’s

60
1 Lord AT Denning, The Family Story (Butterworths 1981)
61
Chief Justice of Nigeria (as he then was),
62
3 https://www.vanguardngr.com/2011/12/‘how-to-restore-public-confidence-in-judiciary

26
belief in the judiciary’s ability to ensure that other arms of government always act within
constitutional limits and the rule of law

On the other hand, other schools of thought pay allegiance to the vitality of technicalities as
part of the law for instance: some judges see legal rules as paramount to justice by providing
certainty in the law.63

This primacy of legal rules was alluded to by Sir Robert Megarry VC in Tito v. Waddell64
who stated that "The question is not whether the claimants ought to succeed as a matter of
fairness or ethics or morality. I have no jurisdiction to make an award to the claimants just
because I reach the conclusion... that they have had a raw deal. This is a Court of Law and
Equity (using "equity" in its technical sense), administering justice according to law and
equity, and my duty is to examine the [claimants'] claim on that footing.". The learned justice
further stated that the big question, therefore, is whether or not there can be a meeting point
between procedural and substantive justice.

It is therefore my humble submission that to answer this poser on the jurisprudential

posturing of Ugandan courts, those of other jurisdictions, in the balancing act of finding an
equilibrium between technical and substantive justice, one must be as empirical as possible.

As such, views, opinions and arguments on the subject from the Bench must be examined,
especially from the perspective of decided cases. This is more so that interpretation is a sine
qua non to dispensation of justice in relation to the discretion accorded to judges.

It is also vital to note that those in support of technicalities argue that procedure is not just an
aspect of the orb of justice that occasionally recedes out of sight as the orb rotates. Even
without tensions to resolve, the task of integrating justice remains at hand, for procedural
discipline is also justice.65
 
On the other hand, courts in Uganda have also gone ahead to set-aside exparte judgements in
a bid to promote substantive justice and as thus in the Hikima Kyamanywa case66, it was held
that under order 9 rule 27 of the CPR, an exparte decree can be set aside where the
summons was not duly served or other sufficient cause.  Court also found that mistake of
counsel is sufficient cause to set aside the   exparte  judgment as already noted above. Clearly

63
Souper (n 3).
64
Tito v Waddell (No 2) [1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972
65
Lim Toh Han in his article the evolving relationship between procedure and substantive law
66
Civil Appeal 01 of 2006

27
the omission of the advocate may be considered negligent but it amounted to sufficient cause
for setting aside the exparte decree under Order 9 rule 27. 

Hon. Lady Justice Byamugisha of the Court of Appeal of Uganda is also of the view that
rules of procedure are supposed to help the courts expedite court business but are not
supposed to be ironclad obstacles to all causes of action in all circumstances.67

There is also no doubt that the problem of technicalities has brought about a number of
immeasurable impacts on rights of individuals in terms of costs, time, resources and mental
disturbance among litigants to mention few.

67
Administering Justice Without Undue Regard to the Technicalities, 2003, 3.
28
 CHAPTER FOUR

UGANDA’S TRADITIONAL JUSTICE SYSTEM AND TECHNICALITIES.

4.1 The Local Council Courts

There is no doubt that Uganda’s traditional justice systems supported the notion of
substantive justice as evidenced from the Buganda custom and saying that “ Tosala gwa
kawala nga tonawuliiriza gwa kalenzi” which meant that you cannot decide a matter without
hearing both sides out. It is however imperative to note that the same concept has been
applied in the Local Council courts today and it is also similar to the common law version of
audi alterm pattern.

Local Councils are a concept around the lowest political-administrative unit based at the
village level i.e., they are the decentralized centres of power in Uganda, intended to promote
local governance and ensure people participation in democratic processes and service
delivery.68

The foundational structure of the Local governance system is laid down in Chapter eleven of
the 1995 Constitution of Uganda as amended variously. The Constitution provides that the
district is the basic unit under which lower local governments are run in such a way as
Parliament may stipulate69

The Constitution of the Republic of Uganda provided for the creation of Local Councils
courts ("LCC") as part of the decentralization of power.

LCCs are the lowest units with administrative, legislative, and judicial powers on behalf of
central governments. LCCs are established under the Executive Committees (Judicial
Powers) Act and there are three levels of the Committee courts – "sub county" (level 3),
"parish" (level 2) and "village" and appeals from the highest of the Committees, (Sub County
executive) lie to the Chief Magistrate and, if the appeal involves a substantial question of law
or appears to have caused a substantial Miscarriage of justice, to the High Court.

The courts are generally composed of five members of their jurisdiction chosen by the
respective executive council of that area apart from the village and parish courts where all the

68
John Kiyaga- Nsubuga and Yasin Olum, Local governance and Local democracy in Uganda, Common wealth
Journal of Local Governance Issue 2, January 2009 at 26-27.
69
Constitution of Uganda 1995, Art. 176.
29
members of the executive council of either the village or parish form the court. At least two
of the members of each of these courts should be women

LLCs’ normally handle cases involving complainants who cannot afford court fees
considering the fact that it is difficult for majority of the population in Uganda to access
justice in the formal court system due to the costs of the litigation.

Under the current law, that is the Act, Cap 8, section 5, the Local Council Courts' jurisdiction
is restricted to where the value of the subject matter in dispute does not exceed UGX 5,000
(five thousand shillings). However, these courts' jurisdiction is not restricted by the monetary
values in respect of causes and matters on conversion or damage to property, trespass, land
disputes relating to a customary tenure, disputes concerning marital status of women, disputes
concerning paternity of children, disputes concerning identity of customary heirs,
impregnating a girl under 18 years of age, elopement with a girl under 18 years of age and
customary bailment.

The judicial power of the LC Court is derived from the LC Courts Act of 2006 which came
into force on 8.6.2006.

Section 11(1) of the Local Council Courts Act provides that: “Every suit shall be instituted
in the first instance in a village local council court, if that court has jurisdiction in the
matter.... within the area....”

4.2 The role of Uganda’s Local Council system in the Justice system.

(A technicality free zone).

Section 6 of the Executive Committees (Judicial Powers) Act, Cap 8 states that a village
executive committee (LC I) shall have criminal jurisdiction to try a child accused of any of
the following offenses:

(a)  affray, under section 79 of the Penal Code Act;

(b)  an offence against section 167 with the exception of paragraph (b) of the Penal Code Act;

(c) common assault, under section 235 of the Penal Code Act;

(d)  actual bodily harm under section 236 of the Penal Code Act;

(e) theft, under section 254 of the Penal Code Act;

(f) criminal trespass, under section 302 of the Penal Code Act;

(g)  malicious damage to property, under section 335 of the Penal Code Act.
30
A Local Council Court 1 may, notwithstanding any penalty prescribed by the Penal Code Act
in respect of the offenses stated above involving children, make an order for any of the
following relief:

 reconciliation;

 compensation;

 restitution;

 community service;

 apology;

In addition to the relief mentioned above, the Local Council Court may make a guidance
order under which the child shall be required to submit himself or herself to the guidance,
supervision, advise and assistance of a person designated by the court. A guidance order shall
be for a maximum period of six months.

LCCs are one of the most accessible justice mechanisms in contemporary Uganda. Many of
the studies conducted on LCCs revealed that they are much more trusted by local population,
since they are heavily inclined towards reconciliation and dispute resolution. However, there
is still a lot of efforts needed in order to promote the rule of law for rural people, where LCCs
operate.

Local council courts are flexible in that they usually sit anywhere and as thus they are
accessible to the people.70

This explains why their offices are usually flooded by cases ranging from those of chicken
thieves, at times they even settle cases of sexual assault as many women find it difficult to go
to the police station to have these cases reported because of the “bad perception” regarding
the procedures and costs of getting justice.

According to Kibalama’s sister Aidah of Kitinda Cell Katabi Sub- County, “ I cannot waste
my time going to a police station to report a sexual assault case because the police will give
me a medical report to fill and filling it also requires money’s which I cannot afford.” I
would rather report the case to the LC1 Chairman.

70
Vice LC1 Chairman Kitubulu 2020

31
The medical reports despite being of vital evidential value are regarded a technicality which
the community looks at as a hindrance to justice due to the costs involved unlike with local
council courts that deal mainly with witnesses.

I believe this kind of steadfastness is rather motivated by the fact that this system is less beau
acratic and doesn’t have to navigate a lot of technicalities in order to deliver justice.

It’s vital to note that technicalities and are always a natural instinct of realizing justice for
instance the technicality of time, the Lc1 chairman will always ask why it took so long for a
lady that was sexually assaulted to report the case as this helps in ascertaining the truth, the
difference is that in the LC1 Courts technicalities are not usually construed as the Alpha and
Omega of Justice but rather true handmaids of Justice.

The Ugandan LC system has been a widely accepted system of conflict resolution among the
populace in Uganda. According to Swaibu Kinawataka a resident of Kitinda Cell, he says
that he believes so much in the LC system due to the fact that it is easier to understand.
According to his connotations, the legal system is so complex that he feels that his opinions
are always sidelined and that at one time his case was dismissed without a hearing based on
its merits in the Grade 1 Magistrates Court.

Study:

I carried out a study about the role and effectiveness of the LC Court system in the areas of
Kitubulu, Katabi Subcounty and Kitala – Bukandekande zone which study explores the
experiences of local council courts in resolving local conflicts and also comes up with
suggestions for more effective resolution of conflicts.

However, in my study I found out that there was NO UNIFORM UNDERSTANDING of

the phenomenon conflict resolution, Jurisdiction of these LC1 Courts and that they play an
advisory role as regards conflict resolution. I.e., in the delivery of community-based justice.

I also found out that the common practice was that these Local Council Courts i.e., LC I, LC
II, LC III handled both civil and minor criminal cases more especially where parties
submitted themselves to the Jurisdiction of the Court.

4.3 Lc System in Land Conflicts and Resolution.

The cases mostly handled were; Fornication, domestic violence, rent defaulting and LAND
DISPUTES which dominated these courts.

Unfortunately, the system failure at these LC Courts and poor record keeping has worsened
the land problem in the community since I found out that in areas of Kitala, you would find
32
land that has been sold more than 3 times illegally to different land owners even when the LC
Offices were notified of the presence of land conflicts on the same.

One of the Officials from the LC Office attributed this to the changes in their tenure which
makes them unaware of the prevailing circumstances.

In majority of these cases, the causes were mostly economical, social, cultural and political
in nature. The study also found out that most of disputes were being brought willingly to the
courts but a small fee levied was unpopular among the community members. The local courts
were issued with guidelines to follow although these guidelines fell short of the expectations
of the members who wished they could also handle criminal cases.

Local council courts were also perceived to be effective in terms of being quick and cost
effective. The effectiveness of these courts was also looked at in terms of their ability to
handle a wide range of services as reported by 38/63%) of the respondents.

That notwithstanding, land dispute resolution by TIs and LCCs is to some extent sanctioned
by law. Section 88 of the Land Act Cap 227 provides: ‘Nothing in this Part shall be taken to
prevent or hinder or limit the exercise by traditional authorities of the functions of
determining disputes over customary tenure or acting as a mediator between persons who are
in dispute over any matters arising out of customary tenure’. From this provision, TIs can
‘determine disputes’ or act as ‘mediators’.

However, Local council 1 courts are confronted with many other challenges, including:

 Their inability to make binding decisions.

 The rising number of land related disputes overwhelming the understaffed and
underfunded structures.

 The bearers of these courts lack of awareness of the provisions of the law and
procedures due to absence of translated and simplified versions of the law.

 There is an inadequate registration and documentation of cases in these courts.

 Inadequate financial and human resources for daily work, permanent structures for
offices, transport and equipment to execute the different mandates of these courts.

 Corruption in the structures.

33
4.3 The judiciary of Uganda and its approach to technicalities.
4.3.1 The Mandate of our Judiciary.
The mandate of the Judiciary as enshrined in Article 126 (1) of the constitution of the
Republic of Uganda states that “Judicial power is derived from the people and shall be
exercised by the courts established under this constitution in the name of the people and in
conformity with law and with the values, norms and aspiration of the people”.

However, the judiciary also has specific objectives71 which include:

The specific Objectives of the Judiciary include;

- To ensure that Justice is done to all irrespective of their social or economic status.

- To ensure that Justice is administered in a timely manner without delay.

- To ensure that adequate compensation is awarded to victims of wrongs.

- To promote reconciliation between parties.

- To administer substantive Justice without undue regard to technicalities.

4.3.2 Mistake of counsel.

In the case of Ketty Najanja V Yafesi Wamala and 2 others Misc App No.001 of 2019; An
application was made seeking to reinstate a suit that had been dismissed under section 98 of
Civil Procedure Act due to absence of counsel for both the Defendant and Plaintiff at the time
of the hearing. The Applicant instructed new lawyers who were now ready to prosecute the
matter. The learned justice clearly asserted that for the dismissal order to be set aside, it must
be proved that the applicant was prevented from prosecuting his case by sufficient cause.

It was discussed that a mistake by an advocate though negligent maybe accepted as sufficient
cause and in this way, courts have taken a more sensitive approach towards realisation of
substantive justice in Uganda.

A similar decision was made in Captian Phillip Ongom V Catherine Nyero Iwota SCCA
No.14 2001  where the learned justice emphasized that a litigant’s right to a fair hearing in
the determination of civil rights and obligations is enshrined in Article 28 of the Constitution
and should not be defeated on the ground of his or her lawyer’s mistakes. Court further set
aside the order and emphasized that the Applicant should not be condemned for counsel’s
mistake and negligence given that she had duly instructed her lawyers and it was the lawyers
that did not enter appearance. The case was then to be heard on its merits.

71
Henry Adonyo Chief Registrar’s paper during the induction of magistrates in 2012.
34
4.3.3 Mistake in the name of the Parties.
In as far as mistake in the name of the parties, the case of Davies v. Elsby Brothers Ltd72
serves as a locus classicus and was cited with approval in Kilembe Mines Ltd v. Uganda
73
Gold Mines Ltd where Devlin L.J. held that; “…it is a general principle of English Law,
not merely applicable to cases of misnomer, that the intention which the framer of the
document had in mind when he brings it into existence is not material. In that we differ from
many continental systems. In English laws as a general principle the question is now what
the writer of the document intended or meant, but what a reasonable man reading the
document would understand it to mean, and that is the test which ought to be applied as a
general rule in case of a misnomer.”

4.3.4 Option of refiling.

It should be noted that where an application has been struck out, subsequent to a ruling on a
legal technicality, it is not decided on the merits, and the affected party is at liberty to file
another application. This, it is said, ensures that justice is eventually done, according to the
law. This assumption assumes that the re-filing is an easy thing. It is not, and where the
litigant cannot be able to refile, it means that his fight for justice ends prematurely. This is so
because some appeal documents are very voluminous, such that re-doing them may require
the kind of financial resources which the litigant may not have, having sacrificed much to
have the ill-fated papers prepared. Secondly, where the matter involves an Advocate, the
Advocate may refuse to concede the mistake, and most Advocates often do, and require new
fees. After all, when a patient dies in hospital that is not a ground for not settling medical
bills. This, in effect, may cause an indigent litigant to give up his fight for justice

Due to judicial activism, the East African court also ruled that “The Court should not treat
any incorrect act as a nullity with the consequence that everything founded thereon is itself a
nullity, unless the incorrect act is of a fundamental nature. Matters of procedure are not
normally of a fundamental nature” in the case of Nanjibhai Prabhudas & Co, Ltd vs.
Standard Bank Ltd74

Furthermore, Lord Bowen in Cropper vs. Smith75, stated that it is a well-established

principle that the object of the Courts is to decide the rights of the parties, and not to punish
them for the mistakes they make (or those that are made on their behalf), in the conduct of
their cases by deciding otherwise than in accordance with their rights……I know of no kind

72
[1903] 3 ALLER 672 (C.A) 
73
HCT – 00 – CC – MA – 2012/312, [2012], 
74
(1968) EA 670,683
75
1884) 26 Ch. D 700,710
35
of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to
correct, if it can be done without injustice to the other party. Courts do not exist for the sake
of discipline, but for deciding matters in controversy.”

To futher buttress the above point, in Uganda the liberal approach in Uganda was pronounced
in the case of Saggu vs. Roadmaster Cycles (U) Ltd76 38, where it was held that; “Where an
application omits to cite any law at all, or cites a wrong law, but the jurisdiction to grant the
order exists, the irregularity or omission can be ignored and the corrected law inserted.

4.4 The arguments for the application of technicalities.

4.4.1 Lawyers And Conflict Of Interest In Uganda
Conflict of interest is a situation where one owes separate duties to act in the best interest of
two or more parties in the same or related matters.

Black’s law dictionary 8th Edition defines conflict of interest as:

A real or seeming incompatibility between one’s private interest and one’s public or fiduciary
duties. / A real or seeming incompatibility between the interests of two of a lawyer’s clients,
such that the lawyer is disqualified from representing both clients of the dual representation.

For a conflict of interest to exist there must be a fiduciary relationship. This is because the
concept of” conflict of interest” based on the fiduciary relationship between an advocate and
client. A fiduciary relationship is essentially a relationship of trust. In the case of advocate-
client relationship, the advocate is the fiduciary who is given the right to take action on behalf
of the client.

Conflict of interest in the laws of Uganda is premised on the Advocates (professional

conduct) Regulation SI 267-2. The different scenarios of conflict of interest as provided for
under the regulations are in Regulations 4, 9 and 10.

Regulation 4 of the advocates professional conduct regulations restricts an advocate from

taking up a matter against a former client, where the past advocate-client relationship, with
that client would be to the detriment of the former client, in that particular matter. It reads as
follows:

“An advocate shall not accept instructions from any person in respect of a contentious or
non-contentious matter if the matter involves a former client and the advocate as a result of

76
(2002) 1EA 258, CA(U)
36
acting for the former client is aware of any facts which may be prejudicial to the client in
that matter.”

In Fred Nyeenya Mayambala and 2 0rs V Bisaso Nathan (Civil suit no.263 of 2005)
[2011] UGHC 155 (24 October 2011), the Court discussed the implication of Regulation 4
of the Advocates (professional conduct) Regulations SI 267-2. In this case plaintiff’s counsel
raised a preliminary objection to the effect that defendants counsel was not supposed to
appear before court in this matter because of conflict of interest. The issue was whether
counsel who had earlier acted for the estate of Samuel Mayambala (deceased) can
subsequently be counsel in a matter regarding the same estate without having a conflict of
interest. The defendants counsel had earlier represented the estate under which the suit
property sought to be recovered by the plaintiff against the defendant fell. Court observed
that the defendants counsel had only represented the estate of Samuel Mayambala, who was
not being sued in this case and the plaintiff were merely suing as beneficiaries of the said
estate, if it had been that the plaintiffs were earlier represented or if it had been the estate of
Samuel Mayambala suing the defendants, then there would have been a conflict of interest.
Court thereby held that counsel had never represented the plaintiffs and neither was the estate
of Samuel Mayambala a party to the suit for there to be a conflict of interest.

From this case it is clear that, for a conflict of interest to arise in respect of a former client
there must be a nexus between the two disputes, which prejudices the position of the former
client. And most importantly the aggrieved party must be a former client of counsel
purporting to act on behalf of the opposing party.

Regulation 9 of the Advocates (professional conduct) Regulations is also relevant when

discussing the issue of conflict of interest. It provides as follows: “9. Personal involvement
in a client’s case. No advocate may appear before any court or tribunal in any matter in
which he or she has reason to believe that he or she will be required as a witness to give
evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes
apparent that he or she will be required as a witness to give evidence whether verbally or by
affidavit, he or she shall not continue to appear; except that this regulation shall not prevent
an advocate from giving evidence whether verbally or by declaration or affidavit on a formal
or non-contentious matter or fact in any matter in which he or she acts or appears.”

In Lwandasa v Kyas Global Trading Company Limited misc. application no. 865 of 2014,
arising from HCCS no.681 0f 2014, in this case the transaction in dispute had been handled
by M/S Nzige Jamero and Co. Advocates, now defendants counsel. The sale agreement in
37
dispute had been drafted by the defendants counsel and the performance and execution was
also overseen by the same firm and also, the legal enforcement of the same. This matter was
of a dispute regarding the said sale agreement.

Court noted that, that the issue material under Regulation 9 is whether, counsel will be
required to appear as both counsel and a witness.

Justice Christopher Madrama thereby interpreted regulation 9 of the advocates

professional conduct regulations, as follows: Regulation 9 is merely a bar to an advocate
from acting as both a witness and counsel in a given matter. An advocate has to pick either to
act as counsel, or to act as a witness in that matter. And that the regulation is in respect of the
individual advocate, as it is only an individual that can be a witness and not the firm, since a
firm is a partnership. And further that such a situation does not amount to a conflict of
interest.

Furthermore, the Advocates (professional conduct) Regulations generally prohibit an

advocate from taking advantage of the advocate-client relationship, under regulation
10, as quoted below.

“Regulation 10 Advocate’s fiduciary relationship with clients

An advocate shall not use his or her fiduciary relationship with his or her clients to his or her
own personal advantage and shall disclose to those clients any personal interest that he or
she may have in transactions being conducted on behalf of those clients.”

A rather interest instance was seen in Uganda V Ojangole CRIMINAL CASE NO.1 of
2014 [2014] UGCACD 3 (13 February 2014) . In this case the accused was represented by
the lawyers of her employer, Uganda Development Bank Limited (UDBL), M/S Ligomarc
and co. Advocates. The said firm had prepared a loan due diligence report for the accused’s
employer. The said report was disregarded in granting the loan and when that fact was
pointed out to the accused, the accused as CEO of UDBL victimized and dismissed the
whistle blower. And that was the basis of the accusations against the accused. Thereby some
of the evidence to be relied upon had been prepared by the said lawyers M/S Ligomarc and
Co. advocates. Thus it was the contention of the prosecution that as a result there will be, a
conflict of interest where a partner or an employee of the said firm will give evidence and be
cross examined.

The issue was whether there is a conflict of interest if the lawyers for the accused’s employer
represented heron criminal charges emanating from her acts at the workplace.

38
In relation to regulation 10, Justice Gidudu Lawrence, inter alia, observed that regulation 10
reinforces regulation 9. That is counsel is forbidden from taking advantage of the fiduciary
relationship with his or her client for any gain. That it was thereby not permissible for
counsel having knowledge of the matter as a result of having acted on behalf of UDBL to
turn around and seek to act on behalf of Patricia Ojangole in matter arising out of the same
transaction. It thereby constituted a conflict of interest.

Further the position in Uganda v Ojangole (supra) should be distinguished from the position
in Lwandasa V Kyas (supra). This is because, as earlier noted, it was the contention of court
that counsel in the case of Uganda v Ojangole was trying to take advantage of the fiduciary
relationship between an advocate and a client. Particularly, counsel had acted for the
accused’s employer, in preparing a document, which was crucial in that case. Whereas, in the
case of Lwandasa V Kyas (supra) court rejected the suggestion that an entire firm should be
stopped from representing a client because they drafted the sale agreement and were involved
in the transaction. Particularly, court noted that the ruling in Uganda V Ojangole (supra) has
no bearing on a matter where counsel for the defendants / respondents, have drafted an
agreement on behalf of the defendant/respondent.

CONCLUSION

Conflict of interest is a rather interesting subject of the law. This is because, each case is
determined on its facts. And it is not always clear whether there is a conflict of interest
because the law is sometimes applied strictly and otherwise moral considerations can be a
guide. However, it is clear that before coming to any conclusion, one must closely evaluate
the facts in that particular case to avoid any error. Needless to add, is that there is no doubt
that such a technicality is extremely important as without it, the legal profession would be
filled with a lot of chaos and disorder.

4.5 Limitation of Action

The Black’s Law Dictionary second Edition defines limitation of Action as a Lawful
boundary to the time period for claiming a civil lawsuit or injury. The limitation implies that
one Cannot bring up an action in court for hearing or enforcement after the period.

In Uganda, Limitation of action is governed by the Limitation Act Cap 80. which provides
that it is an act to provide for the limitation of certain actions and arbitrations and for matters
incidental thereto and connected therewith.

The Limitation Act Cap 80 provides in section 2 instances where limitation may be extended
that include cases of disability, acknowledgment, part payment, fraud and mistake.
39
Section 3 of the Limitation Act provides for limitation of actions of contract and tort and
certain other actions. It states

(1)The following actions shall not be brought after the expiration of six years from the date
on which the cause of action arose—

(a)actions founded on contract or on tort;

(b)actions to enforce a recognizance;

(c)actions to enforce an award;

(d)actions to recover any sum recoverable by virtue of any enactment, other than a penalty or
forfeiture or sum by way of penalty or forfeiture,

The same section 3 of the Limitation Act provided that in case of actions for damages for
negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of
provision made by or under an enactment or independently of any such contract or any such
provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach
of duty consist of or include damages in respect of personal injuries to any person, the
Limitation shall be 3 years.

Section 5 of the Limitation Act Cap 80 provides for Limitation to recover land to be 12 years.
Is states No action shall be brought by any person to recover any land after the expiration of
twelve years from the date on which the right of action accrued to him or her or, if it first
accrued to some person through whom he or she claims, to that person.

Section 17 of the Limitation Act Cap 80 provides for Limitation of action to recover rent
which is six years from the date on which the arrears became due.

Section 16 of the Limitation Act Cap 80 provides for Extinction of title after expiration of
period. It states

4.6 Controversial application of technicalities in Ugandan courts.

Implementation
It is vital to note that most of the technicalities in Ugandan courts are raised by preliminary
objections.
In the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd77 it was
held that; “A preliminary objection is in the nature of what used to be a demurrer. It raises a

77
[1969] E.A 697 
40
pure point of law which if argued on the assumption that all the facts pleaded by the other
side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the
exercise of judicial discretion.”

Case study of the case of Sudhir Ruparelia & Anor V Crane Bank Limited [In
Receivership] (Misc. Application No. 320 OF 2019) [2019] UGCOMMC 21.
The above case involved various allegations both on the ownership of the bank, unremitting
of NSSF savings, allegations of extraction of money but unfortunately the case was dismissed
on a preliminary objection based on locus standi and ability of crane bank to sue while under
liquidation. It was also unfortunate that court based on the literal interpretation of the law
Nevertheless, Whereas the literal rule of interpretation and construction of statutes is the most
preferred, the courts have in the past gone against it where it is clear that the literal
interpretation leads to absurdities, repugnancy, and injustice and is contrary to the
constitution and I believe it would have been more prudent for court to inquire into the
substantive aspects of the case. It is my humble opinion that court should have exercised
judicial activism and resolve the issues at hand not only for the good of either party but also
for the good of the financial sector. 

4.7 Substitution of Parties.

Order 1 rule 10 of the civil procedure rules provides that ; “Where a suit has been
instituted in the name of the wrong person as Plaintiff, or where it is doubtful, whether it has
been instituted in the name of the right Plaintiff, the court may at any stage of the suit, if
satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary
for the determination of the real matter in dispute to do so, order any other person to be
substituted or added as Plaintiff upon such terms as the court thinks fit.”

Nevertheless, the approach is different when it comes to non-existent parties and as thus in
Fort Hall Bakery Supply Company vs Fredrick Muigai Wangoe (1959) EA 474, it was
held that “A non- existent person cannot sue and once the court is made aware  that the
Plaintiff is non-existent, and therefore incapable of maintaining an action it cannot allow the
action to proceed.”

A similar position was stated in the The Trustees of Rubaga Miracle Centre vs Mulangira
Ssimbwa Misc.Application No. 576 of 2006 where it was held that if the person sued is
non-existent, there is no suit filed and where it is filed the anomaly cannot be cured under
Order 1 rule 10 by Remmy Kasule J in these words;

41
4.8 Failure to pay filing fees.
Section 97 of the Civil Procedure Act provides that; “Where the whole or any part of any fee
prescribed for any document by the law for the time being in force relating to court fees has
not been paid, the court may, in its discretion, at any stage, allow the person by whom the
fees payable to pay the whole or part, as the case may be, of that court fee, and upon
payment, the document, in respect of which the fee is payable, shall have the same force and
effect as if the fee had been paid in full in the first instance.” In this, it limits the absurdity
that would have been created by this technicality.

It also suffices to mention that the interpretation of that section was in the case of Standard
Chartered Bank Uganda Ltd v. Mwesigwa 78 where it was held that; “… the provision gives
court discretion to allow the person at any stage to pay fees or part of the fees not fully paid.
In such cases, the proceedings are not a nullity. The provision supposes that it is an
incurable defect. In such cases, proceedings would be stayed pending the payment of the
fees. In this particular case, the court will allow the applicant to have the fees reassessed and
the applicant shall pay the fees so assessed on the documents filed on the court record…
because failure to pay the full fees does not render the applicants application a nullity

4.9 Failure to take out summons for directions.

In the case of C. C. Chendran and Associates Ltd v. Uganda Revenue Authority 79 Civil Suit
No. 917 of 2019, it was held that; “According to Order XIA Rule 2 of the Civil Procedure
(Amendment) Rules, 2019, the plaintiff is required to take out Summons for direction within
28 days from the date of the last reply or rejoinder and that According to Rule 6, thereof, if
the Plaintiff does not take out the Summons for direction, the suit abates. 

4.10 The technicality of a cause of action

According to the case of Auto Garage v. Motokov [1971] E.A 514, there are three essential
elements set down on what a cause of action should enunciate and these are;

that the plaintiff enjoyed a right;

the right had been violated;

and that it was the defendant that was liable.

78
Miscellaneous Application No. 477 of 2012
79
Civil Suit No. 917 of 2019

42
All the three elements should be present in the plaint for there to be a cause of action. In
considering whether a suit discloses a cause of action or not, one looks ordinarily only at the
plaint and assumes that the facts alleged therein are true.

A similar finding was made in Attorney General v. Oluoch80., where it was stated that; “The
plaint must allege all facts necessary to establish the cause. The fundamental rule of pleading
would be nullified if it were to he held that a necessary fact not pleaded must be implied
because otherwise another necessary fact was not pleaded and could not be true.”

4.11 The technicality of Abuse of process.

In the case of Muchanga Investments Limited v. Safaris Unlimited (Africa) Ltd 81 the Court
of Appeal held that; “The term abuse of court process has the same meaning as abuse of
judicial process. The employment of judicial process is regarded as an abuse when a party
uses the judicial process to the irritation and annoyance of his opponent and the efficient
administration of justice. It is a term generally applied to a proceeding, which is wanting in
bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an
element of malice in it. The concept of abuse of judicial process is imprecise, it implies
circumstances and situations of infinite variety and conditions.”

4.12 Technicalities as a menace in Uganda’s land perspective.

Article 26 of the 1995 Constitution of Uganda provides a generic right to property.
Nevertheless, it is also vital to note that the right to own property is not only national but
internationally recognized as witnessed in Article 17 of the UDHR (Universal Declaration of
Human Rights) which declares “No one shall be arbitrarily deprived of his property,”
underscoring the fact that the right to property is one of the most important social and
economic rights to be enjoyed by an individual.

The right to property is also linked to several other rights, including the right to a livelihood,

the right to health, and the right to improved standards of living.

Articles 13 and 14 of the Banjul Charter recognizes different aspects of the right, including
the right to participate freely in the government of his/her country, the right to equal access to
public services, and “the right of access to public property and services in strict equality of all
persons before the law

The vitality and sensitivity of the land sector in Uganda was well set out in the Judiciary
Memorandum to The Land Commission of Inquiry which avers among others that:
80
[1972] E.A 392 at 394
81
& 2 Others, Civil Appeal No. 25 of 2002, [2009] KLR 229, 
43
a) That 85% of Uganda’s rural population depends on land livelihood and survival.

b) That majority of Ugandans depend on land in one way or another for food, shelter, water,

income, spirituality or culture.

c) That for some individuals, peoples and communities, land is intrinsically related to their
identity and standard of living

d) That there is need to protect people’s land rights that have been threatened by the era of
technicalities more especially the poor and destitute who can hardly even afford a lawyer for
a court hearing.

e) That Less than 5% of dispute resolution takes place in a court of law and in less than 1%
of cases is a lawyer involved. More than 1/3 of the people faced with a problem did not take
any steps to resolve it. This is mainly because people feel that they are unlikely to succeed in
their efforts to solve the problem, either because of a lack of knowledge or because it entailed
a high anticipated risk such as an aggravation of the relationship with the other party
(especially in case of family problems), or high investment in terms of time and money.

Similarly, According to the 2016 Justice Needs in Uganda Report- Hague Institute for the
Innovation of Law in partnership with ACORD Uganda: over a four-year period, almost 90%
of Ugandan people experienced one or more serious justice need(s) that were severe and
difficult to resolve, the most prevalent related to land, with specifically high occurrences of
disputes with neighbours over boundaries, rights of way or access to property, theft/robbery
and domestic violence.

In light of the above, it is my humble submission that the dismissal of land cases on
technicalities creates injustice and that rights are meaningless unless they are enforced.

Evolving international law and custom dictates that land as regards the right to property is a
fundamental human right and as thus various writers have linked land grabbing to an act
against humanity.

Uganda is a dualist country. The implementation of international law in Ugandan courts

requires

both ratification and domestication of the laws into national law (Kabagambe, 2016).82 What

82
See the Ratification of Treaties Act (Cap 204) and The Republic of Uganda “Report to the African Commission” presented at the 39th
ordinary session of the Commission in May 2006, 6-7.
44
then are the technicalities of “domestication”? First of all, Uganda’s foreign policy
entrenches “respect for international law and treaty obligations.83”

Article 2(2) of the 1995 Uganda constitution as amended renders all laws subordinate to it
when it declares the Constitution to be the supreme law of the land; any other law or any
custom inconsistent with the provisions of this Constitution shall, to the extent of the
inconsistency be void and the Constitution shall prevail over it. In essence therefore, the
Constitution domesticates international human rights standards with a few exceptions that
will be discussed in due course. This means that the judiciary does not need any special
mechanism as a prerequisite to applying international treaties that Uganda has ratified when
deciding local cases.

It is vital to note that the above preposition was well discussed in the case of Uganda v.
Thomas Kwoyelo, HCT-00-ICD 02/2010 (unreported) and seems to be well settled.

Similarly, the 1988 Bangalore Principles on the Domestic Application of International

Human Rights norms implore courts to look to international law particularly where there is
ambiguity or uncertainty in the Constitution, in legislation or in judicial precedentt and as
thus the vitality of international law and custom realization cannot be under-estimated as far
as the recognition of land law as livelihood.

Conclusion:

In light of the above discussion, there is absolutely no doubt that land in the Ugandan
perspective is livelihood and it is my humble submission that issues to do with life and
livelihood should never be decided on technicalities and courts should ensure that the
substantive rights therein are discussed, investigated and resolved. A case in point is that it
would be an absurdity for one to lose his property unlawfully and for his or her case to be
dismissed on a technicality like that of failing to file court fees or a mistake in the name of
the plaintiff. It is therefore my opinion that courts should be more lenient when dealing with
land matters.

4.13 Equity Law as a mitigation to technicalities.

An English judge once remarked that “English law does not possess a jurisdiction to
administer palm tree justice."84 Equity was first introduced in Uganda through the Reception

83
See Principle xxviii(i)(b) of the National Objectives and Directive Principles of State Policy to the 1995 Constitution.

84
Pearson Introduction to Equity Higher Edition
45
clause of the 1902 Order in Council which formalized colonial rule in Uganda and was the
fundamental law of the protectorate.

According to D. J Bakibinga85, the general juristic sense of equity means the power to meet
the moral standards of justice in a particular case by a judicial body possessing the discretion
to mitigate the rigid application of strict rules in order to adapt the judicial relief to the
peculiar circumstances of the case, therefore it is the liberal and humane interpretation of the
law in general so far as that is possible without actual antagonism of the law itself.

It is also imperative to note that the concept of equity is not written and its application is less
or more based on application of its principles most prevalent being fairness, justice, fair play,
adequacy, clean hands and estoppel. Equity also developed to mitigate the rigidity of the
application of the law and it has been described as a kind of justice superior to legal justice in
fact a correction of the law where its defective owing to its generality.

The 1995 Constitution under Article 126 (2) (e) 86 also stipulates equity in administration of
justice however, it is believed that this provision is mainly used by weak lawyers who are not
ready to proceed and have faults in their court documents and thus In Serapio Rukundo Vs
Attorney Genera187 , it was held inter alia that procedures are hand maidens of justice and
thus should be upheld.

Equity is also reflected in Article 2(2)88 which provides that any other law or custom which is
inconsistent with any of the provisions of the constitution shall be declared null and void to
the extent of its inconsistency. This emphasizes equity application as equity is fully consistent
with the constitution hence its application in courts and laws of Uganda.

However, in in Stephen Mabosi Vs Uganda Revenue Authority 89 it was held that a

memorandum of appeal filed out of time could not be rejected because the appellant could
not file it before obtaining the official record of proceeding.

Needless to add is the case of Joyce Nakacwa Vs Attorney General (supra), a case which
was filed out of time and was allowed by court as court looked at substance of the matter and
human rights of the petitioner.

Conclusion

85
Equity and Trust in Uganda pg.2s
86
As amended variously.
87
Constitutional Petition No.3 of 1997
88
1995 Constitution of Uganda as amended variously.
89
Civil Application no.16 of 1995
46
With the application of Article 126(2) (e), I recommend the remarks in the case of Banco
Arabe Vs Bank of Uganda90 where it was held that a general trend is towards taking a liberal
approach in dealing with defective affidavits. This is in line with the constitutional directive
enacted in Article 126 (2) (e) of the constitution that courts should administer substantive
justice without undue regard to technicalities. Rules of procedure should be used as
handmaidens of justice but not to defeat it.

90
Civil Appeal No.8 of 1998
47
 CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS.

5.0 Introduction
This chapter provides an overall conclusion of the whole study. It contains opinions and
recommendations by the researcher on the subject of this study which is dismissal of cases on
Legal technicalities versus Substantive Justice; a critical analysis of the High Court of
Uganda decisions.

Conclusion.
In light of the analysis of the issue of technicalities and substantive justice as espoused in
Chapter 1,2,3 and 4 , It is worthy to note that courts have paid undue attention to
technicalities at the expense of justice. However, in relation to the fact that courts are a
custodian of the law, it suffices to mention that to a smaller extent, the High court of Uganda
has failed to advance the rule of law and protect the rights of litigants due to the obsession
with technicalities at the expense of substantive justice. This resulted in the lack of
confidence in the judiciary and declining judicial propriety.

The effect of the above has also been enormously negative considering the fact that the
decisions of the superior courts are binding to all the subordinate courts.

It has always been a developed tendency in practice of the High court to dismiss cases on
technicalities, perhaps to them it is an easy and simple way of reducing the workload of the
court but I don’t think so. With the court of appeal being the only option for perusing justice
in a case dismissed on technicality.

As already deciphered above, legal technicalities are birthed from the interpretation and
application of statutes and rules, limitation of actions such as lapse and slips in applications,
complex procedural rules, and contradictions among justices of appeal. Dismissing cases on
technicalities becomes a problem to date. This era has experienced a great use of Legal
technicalities by courts of law which in turns affect the substance of justice. People lose
confidence with the judicial systems of administration of justice.

48
As a result, actions like mob justice are very common today as they make headlines of our
Media Day after day. Legal technicalities bar litigants from accessing justice and it increases
the costs of litigations in terms of time and costs.

As I have hinted before, I do not subscribe to the notion that every matter of procedure has no
relevance. The following procedural matters, when offended, become of fundamental
importance, and dealing with, and making a decision on them, is not dealing with mere
“technicalities”. Matters which when decided do not give room for the applicant to come
back to Court, matters such as jurisdiction, limitation, pleas of res judicata/res-sub judice,
autrefois acquit/convict, to me, are matters of fundamental importance. The researcher also
calls for an immediate redress for the problem hereunder.

Recommendations.
a) I would also recommend that Article 126 (2) (e) of The Constitution should be strictly
adhered by courts of law especially in dispensation of justices in matters of civil and criminal
nature and Alternative Dispute resolution Mechanisms should be encouraged by the
Judiciary.

b) I would also recommend that where a party who is represented by an advocate loses a case
because of the negligence or ignorance on the party of his advocate, the Court should order
the advocate to reimburse the loss that has been occasioned. This will reduce the rate of
professional misconduct among advocates and similarly the clients case shouldn’t be
dismissed on such a lose ground.

A case in point is the recent decision in Simbamanyo Estates Limited, Peter Kamya vs
Equity Bank (U) Ltd, Meera Investments Limited, Luwalulwa Investments Limited and
anor Civil Suit No. 837 of 2020 in which an order was made for the suit to abate simply
because there was failure to take summons for directions.

e) I would also recommend that amendments should be done on various statutes of

procedures to allow relaxation of some complex procedures.

I would like to end by imploring our courts and judicial systems to always embrace changes
for the better with an open mind in the spirit envisaged in Packer-V-Packer [1953] 2 AER
127, where the learned justice stated that “And what is the argument for the other side? Only
49
this that no case has been found in which it has been done before. That argument does not
appeal to me in the least. If we never do anything, which has not been done before we, shall
never get anywhere. The law will stand still while the rest of the world goes on and that will
be bad for both”.

Researchers’ conclusion.
In light of the above dissertation, it is my humble submission that a good justice system is
one that should have a human face, it should not patronize technicalities that will give rise or
room to undeserved victories in litigation.

It is also my humble submission that good law should discourage technicalities and shouldn’t
encourage a situation where a party in litigation will only return home with pyrrhic victory
which in reality is no victory at all and an injustice in the eyes of a fair well minded
individual.

Similarly, blunders must take place in the litigation process and because blunders are
inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath
of the law or mistake of their counsel and it demeans the whole notion of fair hearing which
is cardinal in promotion of the rule of law.

50
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